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Massachusetts Defamation Law

Note: This page covers information specific to Massachusetts. For general information concerning defamation, see the Defamation section of this guide.

Elements of Defamation

In Massachusetts, the elements of a defamation claim are:

a false and defamatory communication

of and concerning the plaintiff which is

published or shown to a third party.

Carmack v. National R.R. Passenger Corp, 486 F.Supp.2d 58 (D.Mass
2007). A plaintiff must also prove that the defendant's fault in publishing the statement amounted to at least negligence. These elements of a defamation claim in Massachusetts are
similar to the elements listed in the general Defamation section, with the following exceptions:

Defamation Per Se

Massachusetts has abolished the separate category of defamation per se
at least in part. Under state common law, any libel is actionable per
se. Sharratt v. Housing Innovations, Inc., 365 Mass. 141 (Mass. 1974).
This means that plaintiffs do not need to plead or prove economic
losses in order to prevail on libel claims.

However, Massachusetts courts have continued to discuss
defamation per se. It appears the state might still recognize libel per
se when determining whether a statement "could damage the plaintiff's
reputation in the community" -- which is part of the consideration of
whether the statement is defamatory. Albright v. Morton, 321 F. Supp.
2d 130 (D.Mass. 2004); Stone v. Essex County Newspapers, Inc., 367
Mass. 849 (Mass. 1975). Libel per se in this context seems to encompass
statements that charge the plaintiff with a crime, that allege the
plaintiff has certain diseases, or that may prejudice the plaintiff's
profession or business. Morton, 321 F. Supp. at note 3.

It also appears that Massachusetts still recognizes defamation
per se in cases involving slander rather than libel. Ravnikar v.
Bogojavlensky, 438 Mass. 627 (Mass. 2003). However, this is unlikely to
arise in an Internet-based defamation action because online defamation
almost always involves libel law.

Public Officials

In Massachusetts, any elected official holding public office is
considered a public official for the purposes of defamation.
Lane v. MPG Newspapers, 438 Mass. 476, 482-484 (Mass. 2003. This means
that any elected official in public office -- no matter how small the
scope of her duties -- must prove that the defendant acted with actual malice
in order to prevail on a defamation claim. The Lane court found that an
elected town representative was a public official though the
representative's duties were limited to meeting with the rest of a
104-member committee once a year to vote on various town issues.

Criminal Libel

Massachusetts recognizes criminal libel as a common law offense,
though it does not have a criminal libel statute. Commonwealth v.
Clapp, 4 Mass. 163 (Mass. 1808). However, there does not appear to be
any Massachusetts criminal libel case law since the Supreme Court's
1966 decision in Ashton v. Kentucky, which invalidated the Kentucky
common law crime of criminal libel as unconstitutionally vague and
overbroad. Ashton v. Kentucky, 384 U.S. 195 (1966). Following the
Court's decision in Ashton, many states have repealed their criminal
libel statutes or ceased to recognize the common law crime.

As a general matter, if a statement is substantially true, it
cannot be actionable as defamation. See Milgroom v. News Group Boston,
412 Mass. 9, 12-13 (1992). Under Massachusetts statutory law, however,
"truth shall be a justification unless actual malice is proved." M.G.L. c. 231 Section 92.
This potential limitation on the truth defense is unlikely to be
constitutional and, indeed, Massachusetts courts have held that it does
not apply to cases involving public-figure or public-official
plaintiffs or cases brought against media defendants that deal with
matters of public concern. Materia v. Huff, 394 Mass. 328, 333 n.6
(1985); Shaari v. Harvard Student Agencies, Inc., 427 Mass. 129, 134
(1998). No court has applied the statute in a case brought by a private
plaintiff that involves issues not of public concern.

Statute of Limitations for Defamation

The statute of limitations for defamation in Massachusetts is three (3) years. See M.G.L. c. 260 sec 4.

Massachusetts has adopted the single publication rule, defining
publication as the time when a work is "first made widely available to
the public". See Abate v. Maine Antique Digest, 17 Mass. L. Rep. 288
(Mass. Super. Ct. 2004). The Abate court also explicitly extended the
single publication rule to statements published on the Internet. For a
definition of the "single publication rule," see the Statute of Limitations for Defamation section.

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Disclaimer

Information in this guide is based on general principles of law and is intended for information purposes only; we make no claim as to the comprehensiveness or accuracy of the information. It is not offered for the purpose of providing individualized legal advice. Use of this guide does not create an attorney-client or any other relationship between the user and the Digital Media Law Project or the Berkman Center for Internet & Society.

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